Cautiously Optimistic – A 377 review

By Shweta Kumar

India has been exceptionally slow to reform its criminal justice system. The Indian Penal
Code has undergone little change since independence as a result most laws echo outdated
colonial prejudices. One such example is the Section 377, which criminalizes consensual
same sex relations. In 2009, Delhi High Court read down this archaic law stating that the
law violated individuals’ right to privacy and unfairly targeted a certain group of citizens.
In effect, Delhi High court ruling would take India off the list of those countries which
criminalize homosexual sexual relations. It would be the first step towards combating
police brutality against many queer folk in India.

The Delhi High Court ruling was challenged in the Supreme Court. Religious
groups All-India Muslim Personal Law Board (AIMPLB) and the Apostolic Churches
Alliance along with Ramdev Baba are the main litigants challenging the Delhi High
Court ruling. The Home Ministry decided to defend the law in the Court. The Additional
Solicitor General (ASG) appearing for the Home Ministry argued that the right to privacy
didn’t cover unlawful acts such as homosexual relations. This stance was in stark contrast
with the Law Ministry’s statement after the 2009. The law minister at the time, Veerappa
Moily, hailed High Court’s decision as the step in the right direction. Later, ASG Mohan
Jain, appearing on behalf of the Health Ministry, argued that the Cabinet found didn’t
find any error of law in the High Court judgement thus would not defend the law. This
statement drew sharp criticism from the Bench. Justices Singhvi and Mukopadhyay
admonished the government for presenting two different stands and for making
a “mockery of the system”. At this point, the government of India is both against and for
the reading down of Section 377 with the Home Ministry defending the law and the
Health ministry opposing it.

As for the private groups arguing against the High Court ruling the main
argument is the damage legalizing homosexuality would cause to the moral and social
fabric of the nation. Some of the litigants are Hindu right wing groups that also argued
that abolishing untouchability would damage the social fabric of the Hindu society.
These right wing groups have time and again opposed women’s rights as well. The
counsel appearing for All India Muslim Personal Law Board, Mr. Ahmadi, argued that
the court’s sole purpose was to protect the fundamental rights of citizens. However, since
no constitutional injury was being caused, the court had no business ruling on the legality
of homosexuality. The counsel also quoted the Koran, the Bible, Manusmriti and the
Arthshastra to back his argument about homosexuality violating India’s social morality.
The counsel went to challenge the right to privacy’s status as a fundamental right.
The litigants challenging the High Court verdict largely make public morality
based arguments. They fail to take into account that the Indian state exists to protect the
civil liberties of its citizens rather than to uphold standards to public morality. An even
more fundamental question is what authority does the Supreme Court, composed of
appointed judges, have to regulate issues of “morality”. The counsels forget that many
ancient Indian works do not object to homosexuality. Even Manusmriti, which Mr.
Ahmadi has quoted as evidence of present day social morality, does not criminalize
homosexuality like Section 377.

The Judges challenged the arguments based on the social unacceptability by
pointing out the changing definition of acceptable social behaviour. The judges
interjected saying that surrogacy, single parent families and live-in relationships were all
unacceptable at some point but as the society progressed these things became acceptable.

Therefore the arguments based on social acceptability of homosexuality do not hold any
ground. As a young Indian, who readily comes out as queer in India, I have rarely
encountered individuals who find my sexuality morally reprehensible. The homophobic
responses are more xenophobic in nature, rooted more in the fear of the unknown than in
the morality of my choices itself. Given the judges’ earlier objections to social
acceptability arguments and the lack of solid constitutional arguments from the
defendants of Section 377, I would like to believe that Supreme Court would approve of
the High Court verdict. However, it is too soon to come to conclusions. I do believe that
the Supreme Court in the past few years has displayed considerable progressiveness but I
am cautious in my optimism.

It is time we reaffirmed the civil rights of millions of queer Indians. Even though
laws are not the complete solution to combating homophobia that besets modern Indian
society, they do go a long way in changing perceptions. A whole generation of Indians
would witness this landmark decision. The press received by the issue gives the queer
rights movement the much deserved media attention needed for its cause. I hope that the
court upholds the 2009 verdict. For now all I can say is that I am sitting on the edge of
my seat watching this case unfold.

For more info check out these links,

Privacy right is no cover for unlawful act: Counsel

Verdict on Homosexuality Not to be Interfered With: Nariman

Privacy Not at the Cost of Social Morality, Argues Muslim Board

Shifting Stand on Homosexuality, Centre draws Supreme Court Ire

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